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Radhey Shyam Sawhney and ors. Vs. Bawa Joginder Singh Bhalla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 397 of 1967
Judge
Reported inAIR1969Delhi142; 5(1969)DLT82; ILR1969Delhi19
ActsCode of Civil Procedure (CPC), 1908 - Sections 121, 122 and 127 - Order 37, Rule 1 - Order 41, Rule 23-A; Constitution of India - Article 245; Delhi High Court Act, 1966 - Sections 7; States Reorganisation Act, 1956 - Sections 54, 119 and 120; High Courts (Punjab) Order, 1947; Punjab High Court Rules
AppellantRadhey Shyam Sawhney and ors.
RespondentBawa Joginder Singh Bhalla and ors.
Appellant Advocate A.C. Sehgal, Adv
Respondent Advocate Pishori Lal, Adv.
Cases ReferredEmpress v. Burah
Excerpt:
.....was nto changed through sections 121 and 127 of the civil procedure code, 1908 till the time the delhi high court did nto exercise the power to amend under section 122 of the code b) the case debated on the scope and object of section 7 of the delhi high court act, 1966 and concluded that it does nto exclude applicability of law in force regarding practice and procedure in courts subordinate to the delhi high court - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother..........submission. the learned counsel then attempted to seek some assistance by way of analogy from the high courts (punjab) order, 1947 made by the governor-general at the time of the unfortunate partition of the punjab in 1947 when india became independent, but that analogy, in our view, is of little guidance because the two situations are far from parallel.2. rule 1 of order 37, civil p. c. was originally amended by the lahore high court in 1923 and 1932. according to the amendment, as it stood at the time of the partition of the country, order 37 was applicable to the courts of the district judges and subordinate judges of the first class of delhi province and the courts of the district judges and subordinate judges of first class in the civil districts of lahore and amritsar in the.....
Judgment:

Dua, C.J.

1. This case has been placed before us pursuant to my order of reference dated 14-11-1967 which may be read as a part of the present order. The only question requiring authoritative determination is whether the amendment made in Rule 1 of Order 37 of the Code of Civil Procedure by the Punjab High Court is still operative in the Courts of the District Judges and Subordinate Judges of 1st Class in the Union Territory of Delhi The submission eloquently pressed by Shri Sehgal on behalf of the defendant-petitioner is that under section 7 of the Delhi High Court Act No. 26 of 1966, the Delhi High Court alone has the power to make rules and orders with respect to practice and procedure and all rules made by the Punjab High Court with respect to such practice and procedure in relation to the subordinate Courts at Delhi must cease to have effect as soon as the Punjab High Court ceased to have jurisdiction over such subordinate Courts.

2. In support of his submission. Shri Sehgal has cited a Single Bench decision of the Madhya Pradesh High Court by Shiv Dayal, J, in Munnilal Kailash Chandra v. Akabai, : AIR1960MP130 . The question arising for decision in the reported case was whether the rules made by the High Court at Nagpur in exercise of the powers conferred under section 122, Civil P, C., and which were in force in the former State of Madhya Pradesh as it existed before the Reorganisation of States on 1-11-1956, were enforceable in that territory of the new Madhya Pradesh which up to 21-10-1950 was called the Part B State of Madhya Bharat. Section 54 of the States Reorganisation Act, 1956 falling in Part V of that Act was held nto to apply to the Rules made under section 122, Civil P. C, because that section referred to only those laws, rules and orders which dealt with the practice and procedure 'in the High Court' and nto those which deal with practice and procedure 'in all Courts'. A rule made by a High Court under section 122, Civil P. C., was, according to the reported decision, a piece of delegated or subordinate legislation and was governed by section 119 and nto by section 54 of the States Reorganisation Act. It is obvious that the reported case does nto support Shri Sehgal's submission. I may here reproduce the following observations from the reported judgment:

'It is obvious enough that any of the rules in the first schedule of the Code could be annulled, altered or added to by such rules as a High Court made under that power. Rules made in exercise of that power became a part and parcel of the First Schedule of the Civil Procedure Code so far as that State was concerned. In that view of the matter, the rules made by the High Court of the 'corresponding State' of Madhya Pradesh (that is, the former M. P. which existed prior to November 1, 1956) continued to be operative in those territories of the new Madhya Pradesh State even after November 1, 1956. But since they have nto yet been adapted under section 120 of the States Reorganisation Act for the other territories of the 'corresponding new State' (that is, the present State of Madhya Pradesh) they are nto operative and cannto regulate the procedure of the Civil Courts there. The territories of the former State of Madhya Bharat are, thereforee, outside the operation of those rules.'

The observations just reproduced, if I may say so, run counter to the counsel's submission. The learned counsel then attempted to seek some assistance by way of analogy from the High Courts (Punjab) Order, 1947 made by the Governor-General at the time of the unfortunate partition of the Punjab in 1947 when India became independent, but that analogy, in our view, is of little guidance because the two situations are far from parallel.

2. Rule 1 of Order 37, Civil P. C. was originally amended by the Lahore High Court in 1923 and 1932. According to the amendment, as it stood at the time of the partition of the country, Order 37 was applicable to the Courts of the District Judges and Subordinate Judges of the First Class of Delhi Province and the Courts of the District Judges and Subordinate Judges of First Class in the civil Districts of Lahore and Amritsar in the Province of Punjab. On the partition of the country in 1947, Lahore was included in Pakistan and Delhi and Amritsar in India. These two latter towns fell within the jurisdiction of the East Punjab High Court created by the High Courts (Punjab) Order, 1947. Later, the Punjab High Court took action under section 122 of the Code of Civil Procedure and amended, among other rules contained in the First Schedule of the Code, Rule 1 of Order 37. The amended rule so far as relevant for our purpose, reads as under:

'Order 37, Rule 1. Summary Procedure on Negotiable Instruments-- This order shall apply only to -

(a)* * * * * (b)* * * * * (c)* * * * * (d) the Courts of the District Judges and Subordinate Judges of the First Class of the Union Territory of Delhi and the Courts of the District Judges and Subordinate Judges of the First Class in the civil district of Amritsar in the State of the Punjab.'

(See pp. 39 & 40 of Chapter 21 of Vol. I of the Rules & Orders of the Punjab High Court). This statutory amendment of Order 37, Rule 1, was lawfully effected by the Punjab High Court by virtue of the power delegated to it under section 122 of the Code. Indeed, the validity of the amendment has nto been challenged on the ground of want of power in the High Court or on any other ground. In the referring order dated 14-11-1967, reference has been made to a Bench decision of the Lahore High Court in Bhondu Mal's case, 2nd 8 Lah 156 = AIR 1927 Lah 174 upholding the validity of the rule made by the Lahore High Court. The ratio of that decision fully applies to the rule in question as altered by the Punjab High Court after partition.

3. Turning now to the scheme of Part X of the Code dealing with the Rules, section 121 lays down that the rules in the First Schedule shall have effect as if enacted in the body of the Code of Civil Procedure until annulled or altered in accordance with the provisions of that Part. Section 127 lays down that the rules made and approved as provided in sections 122 to 126, shall be published in the Official Gazette and, from the date of publication or from such other date as may be specified, have the same force and effect within the local limits of the jurisdiction of the High Court which made them as if they had been contained in the First Schedule.

In Kishan Singh v. Bachan Singh Air 1942 Lah 201, a Division Bench of the Lahore High Court (Tek Chand and Beckett JJ.), while upholding the validity of Rule 23-A of Order 41, Civil P. C., as amended by the Lahore High Court, relied on the observations of Lord Selborne in Empress v. Burah, 2nd 4 Cal 172 (PC) that when power is given to a subordinate authority to 'legislate conditionally' and 'the conditions have been fulfillled, the legislation becomes absolute.' The ratio of the decision in Dr. Kishan Singh's case Air 1942 Lah 201 fully applies to the case in hand and the validity of Rule 1 of Order 37, as amended by the Punjab High Court, has rightly been nto assailed.

4. It is undoubtedly true that S. 127 of the Code lays down that the rules made, approved and published have the same force and effect within the local limits of the jurisdiction of the High Court which made them. Section 122 also empowers the High Courts mentioned therein to make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence. But even without this clause, the rules made by the High Courts could nto possibly operate beyond their territorial jurisdiction.

The question requiring determination in the present case is that when Rule 1 of Order 37 has been validly amended by the Punjab High Court so as to apply the summary procedure on negotiable instruments to the Courts of the District Judges and Subordinate Judges of the First Class of the Union Territory of Delhi, can this amendment be held automatically nullified merely because a separate High Court has been set up for such Union Territory? In other words, do sections 122 and 127 of the Code have this effect? Nothing has been said at the bar in support of this proposition. All that has been argued is that these rules relate to practice and procedure in Courts subordinate to the High Court and, thereforee, section 7 of the Delhi High Court Act does nto continue them. This section, according to the argument saves from discontinuance only the law in force immediately before the appointed day with respect to practice and procedure of the High Court of Punjab and nto the law so in force with respect to practice and procedure in Courts subordinate to the High Court. This argument, though prima facie attractive, seems to me to be difficult to sustain.

Section 7 appears to have been intended to apply, the 'law in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab with necessary modifications, to the High Court of Delhi, to which obviously such rules were not, and could nto be, applicable before the. appointed day, for the simple reason that the High Court of Delhi did nto exist before the appointed day. This section, on its plain reading, does nto seem to contemplate the negative by ex-eluding the applicability of the law in force immediately before the appointed day with respect to practice and procedure in the Courts of the District Judges and Subordinate Judges of the First Class in the Union Territory of Delhi. The Parliament, in my view, did nto intend by enacting section 7 that Rule 1 of Order 37, as indisputably applicable in express terms to the subordinate Courts in the Union territory of Delhi, would cease to apply to them with effect from the appointed day. The Courts of the District Judges and of Subordinate Judges of the First Class in the Union territory of Delhi having been expressly included in the amendment made by the Punjab High Court in Rule 1 of 6. 37, nothing contained in sections 121 and 127, in my view, would automatically repeal this part of Rule 1 or render this part of the amendment ineffectual or inoperative with effect from the appointed day.

Section 127, prescribing publication of the rules, emphasises the initial enforcement of the rules within the local limits of the jurisdiction of the High Court making them. I am nto inclined to construe this section to lay down that as soon as the High Court making the rule is replaced by another High Court, the rule validly made and applied to the proceedings in certain specified Courts in a given locality, would lose its vitality in regard to them. In the absence of clear indication, I find it difficult to impute such intendment to the Legislature. No principle has been brought to our notice and no precedent has been cited in support of the submission pressed by Shri Sehgal. The Punjab High Court having validly exercised its legislative power as a delegate in suitably adding to Rule 1 of Order 37 so as to make it applicable to certain specified Courts in the Union territory of Delhi, in my view, this rule as amended continues to apply to the relevant legal proceedings in those Courts in just the same way as the main body of the Code of Civil Procedure applies to them, the creation of the Delhi High Court notwithstanding. Of course it is open to the Delhi High Court at any time to again annul, alter or add to the provisions of Rule 1 of Order 37, but so long as this Court does nto choose to take action under section 122 of the Code, the existing Rule 1 must continue to appl to the Courts specified therein.

5. As a result of the foregoing discussion, I am inclined, as at present advised, to hold that Rule 1 of Order 37, as amended by the Punjab High Court, would continue to apply to the Courts of the District Judges and of Subordinate Judges of the First Class in the Union territory of Delhi. The case will now go back to the Single Bench for final disposal of the revision.

S.K. Kapur, J.

6. I agree.

7. Reference answered.


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